There are a number of basic skills a lawyer ought to have and continue to develop in order to carry out her professional responsibilities and to achieve excellence. One of those skills is asking questions, the rights ones in the right ways at the right times. It is an art that combines, among other things, mindfulness, respect and perhaps most importantly the closely related discipline of listening and taking into account both what is said and what is not said.
With the exception of examining and cross examining witnesses, asking questions is an aspect of lawyering that is, in my experience, not taught and, in practice, is often taken for granted, which can lead to lost opportunities to understand the real problem or issue and to counsel clients effectively and efficiently. Fortunately, there are examples one can learn from. Two come immediately to mind. One is readily available. The other requires a trip to England.
At a course on trial practice given at Oxford University sponsored by the ABA litigation section and the Inns of Court, I saw King’s Counsel and Queen’s Counsel at work. King’s Counsel (K.C.) or Queen’s Counsel (Q.C.) are recognized as excellent trial lawyers. To become a King’s Counsel or Queen’s Counsel is an honor and an extraordinary accomplishment signifying the highest level of skill. One of those skills is cross examination, asking questions of witnesses called by one’s opponent or who have been recognized by the court as hostile. The American sterotype of cross examination often involves aggressive and sarcastic questioning. The British tradition as I saw it was entirely different. Each Q.C. I saw cross examine a witness was unfailingly polite, even gracious. But their questions were simple, clear, direct and always, always telling. The overall effect was stunning. The credibility of the witness, or lack of credibility as the case may be, was laid bare because there were no distractions. The focus was not on the lawyer. All attention was focused on the cumulative effect of clear, pointed and carefully constructed questions and the witness’s answers. I found it breathtaking. It had never occurred to me that being fair and polite while conducting a cross examination could be so devastating and effective. Of course there was more to it than just being polite. The questions were the product of careful thought and meticulous preparation.
A more readily available example of excellence in asking questions can be found here at the Diane Rehm show. Rehm hosts the best radio program in the country devoted to ideas. Her gift, one of her gifts, is the ability to make interesting ideas available to a large audience by interviewing an incredibly wide range of fascinating guests, politicians, professors, scientists, authors, and others. Sometimes her guests are not so eager to answer her questions. Other times there is no controversy just wonder (in the good sense) at what the guest is saying. No matter what the situation, Rehm’s questions and the way she asks them work. She is unfailingly polite but never wobbly; always firm. Like a Q.C., Rehm uses the art of questioning to bring forward things that matter, which is why I think of her as Diane Rehm, Q.C.